IN THE CASE OF:	  

		BOARD DATE:	  8 February 2011

		DOCKET NUMBER:  AR20100015387 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that the reason for separation be changed from misconduct to medical.

2.  The applicant states he should have been separated for medical reasons because he was being treated for several medical conditions, not for misconduct.

3.  The applicant provides 82 pages of service medical records, a DD Form 214 (Certificate of Release or Discharge from Active Duty), 12 pages of post-service medical documents, and documents related to an appointment under a power of attorney.

CONSIDERATION OF EVIDENCE:

1.  The applicant's service medical and dental records are believed to be on permanent loan to the Department of Veterans Affairs and are not available for review.

2.  The applicant enlisted on 23 April 2008, completed training, and was awarded military occupational specialty 92A (Automated Logistical Specialist).

3.  The applicant participated in a 12-hour command-directed alcohol and drug abuse prevention training program on 8-9 June 2009 following receipt of a civilian citation for driving under the influence.

4.  The applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice, as follows:

	a.  19 May 2009, for being incapacitated due to overindulgence in intoxicating liquor.  His punishment was reduction to E-1, forfeiture of $326.00 pay per month for 1 month (suspended), and extra duty for 14 days; and

	b.  17 December 2009, for willfully disobeying a lawful order.  His punishment was reduction to E-1, forfeiture of $699.00 pay per month for 2 months, extra duty for 45 days, and restriction for 45 days.

5.  The applicant underwent a medical examination on 29 December 2009.  He was shown to have severe flat feet, an adjustment disorder with anxiety and depression, and proteinuria (serum proteins in the urine).

6.  On 1 February 2010, the applicant underwent a mental status evaluation.  He was found to have normal behavior, to be fully alert and oriented, his mood and affect were unremarkable, and his thinking process was clear with normal thought content and good memory.  He was determined to be mentally responsible with the mental capacity to understand and participate in the separation proceedings.  He met the retention requirements and did not require a medical evaluation.  He was diagnosed as having an adjustment disorder with anxiety, but his current situational stress did not render him unfit.  He was cleared for administrative action.

7.  On 8 February 2010, the applicant's unit commander initiated separation proceedings under Army Regulation 635-200 (Personnel Separations), chapter 14, for misconduct.  The specific reasons for the recommended action were:

* wrongfully being incapacitated due to overindulgence in intoxicating liquor on 22 April 2009 
* disobeying a lawful order issued by a commissioned officer on 1 November 2009
* wrongfully operating a motor vehicle while under the influence of alcohol on 28 October 2009
* failing to report for duty on divers occasions

8.  The applicant acknowledged the proposed action and declined to speak with counsel before signing the form wherein he waived his right to an administrative separation board and to counsel.

9.  On 11 March 2010, the discharge authority approved the separation under the provisions of Army Regulation 635-200, chapter 14, and directed the applicant be issued a general discharge.

10.  The applicant was discharged on 23 March 2010 under the provisions of Army Regulation 635-200, paragraph 14-12c, with a narrative reason of misconduct (serious offense).

11.  The medical records provided by the applicant show he was treated for proteinuria, an adjustment disorder with anxiety, and a mild single-episode major depressive disorder.

12.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct, including serious offenses.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.  [Any offense for which a punitive discharge is authorized under the Uniform Code of Military Justice is considered a serious offense.]

13.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 111 for driving under the influence of alcohol.

14.  Army Regulation 635-40 (Physical Evaluation for Retention or Separation) provides that a Soldier who is charged with an offense or is under investigation for an offense for which he could be dismissed or given a punitive discharge may not be referred for disability processing.  Further, disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should have been separated for a medical reasons because he was being treated for several medical conditions, not for misconduct.

2.  The available medical records do not indicate any medical condition incurred while entitled to receive basic pay was so severe as to render the applicant medically unfit for retention on active duty.  At the time of the separation physical examination, competent medical authority determined the applicant was medically fit for retention or appropriate separation.  Accordingly, the applicant was separated from active duty for reasons other than physical disability.

3.  The applicant was performing his duties.  His service was not interrupted by any physical condition but, rather, by his misconduct.

4.  The applicant's administrative separation was accomplished in compliance with applicable regulations.  The type of discharge directed and the reasons were appropriate considering all the facts of the case.

5.  The applicant provided no evidence warranting a change to the reason for his separation.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X___  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ____________X_____________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20100015387



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ABCMR Record of Proceedings (cont)                                         AR20100015387



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